Regulations on Judges disclosure of registrable interest

Meeting report

Draft Regulations on judges' disclosure: continuation of deliberations
Mr Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development, tabled the draft Government Notice dated 5 April 2013, and referred also to the document dated 3 April, headed "Note to the Portfolio Committee on categories of judges (see attached documents).

Mr de Lange noted the categories he had suggested: judges in active service, those discharged from active service, who were required to be available to perform service; those discharged from active service who were not required to be available to perform service; judges aged 75 years and older, and Acting judges. It was suggested that the first two be required to make full disclosure. Mr de Lange noted that the fourth category (judges aged 75 and older) would fall away if the Committee decided that there should be no disclosure, because there would be no difference in the requirements for registration.

Mr de Lange took Members through the draft Government Notice of 5 April, pointing out changes made since the last meeting. The definitions remained unchanged. The first change of substance was in Regulation 2, where there were only two categories where disclosure was required, namely judges in active service, and their immediate family members, and those who had been discharged from active service who were required to be available to perform service. A new phrase had been added to Regulation 2(2)(a), which dealt with the interests of judges discharged from active service but performing service as a judge. A party to proceedings may make application that the interests of this judge be disclosed to the Head of the Court. If there was not an appointment to a specific court, the application would be made to the Chief Justice rather than the Head of the Court.

He also noted that an option had been included, in relation to “dependent children”, which required that the interests of a judge's dependent children were registrable if the judge was in active service. Other family members’ interests would be registrable if the judge was in active service, if the judge wished to disclose and if the family members affected had consented.

Regulation 2(3) was unchanged from the previous draft.

Regulation 3 contained some consequential changes to align it with what was previously discussed about adding disclosure of registrable interests of family members, provided that they consented. Regulation 3(4) had been changed, because Mr de Lange thought it was logical that a judge should be able to make a declaration immediately on acquiring property, so it now read that a judge “may at any time make disclosures to the Registrar”, in addition to the annual requirement that he must do so. This would also fall in line and be more consistent with what followed.

Mr de Lange noted that there no changes to Regulation 4.

Regulation 5 now also included an option that the Registrar must, for the purposes of indicating the degree of compliance, furnish the Judicial Service Commission (the Commission) with the names of the judges in active service who had disclosed interests of their family members. This emanated from discussions at the last meeting. It could be argued, even if this was omitted, that the Judges' Remuneration and Conditions of Service Act (the Act) required the report from the Registrar to indicate the degree of compliance.

Annexure A applied to judges in active service, and Part 2 to the interests to be disclosed by judges discharged from active service. Part 3 fell away, and was replaced with a new Part 3 dealing with voluntary disclosures of family members. The option on page 9 related to dependent children.

Discussion
Mr J Jeffery (ANC) said that he seemed to be the only Member of the Committee who held strong views on the immediate family members’ interests. He remained concerned that a person wanting to launder money to a judge could easily do so through the immediate family. He noted that it was not compulsory for all immediate family members to disclose. However, dependent children should not, because of their dependency, have their own assets, and he would therefore support Option B on page 2, that there should be registration of dependent children’s’ interests. That would need to be confidential and there would be some other consequential changes required. For instance, if there was support for the option under Regulation 3(1) then the last sentence would have to be changed as dependent children must consent.

Mr Jeffery noted that there was substantial reference in the draft to "family members" but the term used in the Act, and defined in that Act, was "immediate family members" and he suggested that the latter should be used consistently.

Mr Jeffery was surprised to see the use of "may" in Regulation 5, and thought that it should be "must", with an obligation to inform the Head of Court.

Mr Jeffery was pleased to see the requirement for compliance in the Act that the names be given to the Commission. He thought that both the name of the judge, and the names of family members who had disclosed, should be included.

Mr Jeffery observed that under Regulation 2(2)(a), if the service was not related to a particular court, the application must be made to the Chief Justice. He questioned if Premiers had the power to appoint commissions, in which case, for an appointment to a provincial commission, it might make more sense to have the application made to the relevant Judge President. However, thinking out loud, he then said that this was not likely to happen too often, and it might be quite complex to word this with a number of alternatives, so for the sake of expediency, perhaps the wording should continue to refer in all cases to approval by the Chief Justice.

Adv S Holomisa (ANC) agreed with Mr Jeffery's proposals, and also commented that he believed that reporting to the Chief Justice in all cases made sense.

Other Members indicated their agreement.

Mr Holomisa wondered if the definition of "immediate family member" should be included in the Regulations, as it was cumbersome to have to refer back to the Act. 

Adv H Schmidt (DA) questioned whether the definition of "dependent children” might include a judge’s non-biological children, such as those of the spouse, or those for which s/he was a legal guardian.

Mr JB Skosana, Chief Director: Policy, Department of Justice and Constitutional Development, commented that the Act covered the position of the judge being appointed to a commission. The judge, no matter by whom s/he was appointed, could be paid only through the National Revenue Fund, because the provinces could not pay judges. Therefore, the President had to determine remuneration.

Mr de Lange agreed with Mr Jeffery that Regulation 3(5) should be worded as “must”.

Mr de Lange agreed that the term "immediate family members could be used throughout; it had been shortened to “family members” only to try to use plainer language.

Mr de Lange commented that it was possible to include a definition of “immediate family members” in the regulations, but this was not really consistent with standard practice, because the Regulations were always deemed to incorporate all the definitions in the Act.

Mr Jeffery added that definitions would only usually be included in Regulations if not used in the principal Act, and it would seem strange to reproduce one definition but not all. He took Adv Holomisa’s point that it could be inconvenient to refer back to the Act, but said that when the Code was published, the Act’s definition could be highlighted.

Mr de Lange responded in relation to what would be included under "dependent child". He thought that the dictionary definition would apply, and he was not sure whether there was any merit in legally unpacking it.

Adv Schmidt made the point that there were several different interpretations, which was why he thought that a definition was needed.

Mr Jeffery agreed, but thought that the definition should be narrow. Because the rest of the "immediate family" disclosure was optional, he thought that a "dependent child" should be limited, for instance, to the children of the judge, who may inherit from him under intestate succession, or where there was parental authority, which would mean the judge’s biological or adopted children.

Mr de Lange suggested that the term "all minors for whom the judge is the legal guardian" could be used, as that would cover step-children.

Mr L Landers (ANC) said that the mischief that the Regulations were trying to avoid was that a non-biological child may be used to hide assets.

Mr Jeffery countered that the spouse of the judge would be the legal guardian of his/her own children, and it may or may not be easy for the judge to access funding improperly channeled through a minor child, depending on the state of the marital relationship.

Mr Skosana read out the definition in the Act of “immediate family member”, noting that it referred to a spouse, permanent life partner or civil partner, and included dependent children living in the same household as the judge. He was not sure if that lent itself to other interpretations.

Mr Jeffery said that this was clearly intended to indicate that the judge was supporting that child. He still preferred the use of "legal guardian".

Mr Landers pointed out that a dependent child could also be living outside the household of the judge, if the parents were divorced.

Adv Holomisa made the point that in certain cultures, children of relatives of the judge, such as his/her siblings, may be dependent on the judge for their livelihood, even if there was no legal obligation to support.

Mr Jeffery noted that adopted children had the same rights as biological children. "Dependent" in this context did not mean financially dependent, but went broader, to the sense of having responsibility for the day-to-day upbringing of the child. He thought that the Act’s definition was clear, and a dependent child would be a biological or adopted child.

The Committee confirmed to Mr de Lange that they did wish the optional wording set out to be included.

Mr N Koornhof (COPE) proposed acceptance of the draft.

Mr Jeffery cautioned that before accepting the draft, the Committee must be clear on procedure. The draft Regulations had to be adopted by both Houses, and he thought it safer to note that this Committee would in principle accept the draft Regulations, subject to the approval of the NCOP Ad Hoc Committee. It would be a problem if two differing sets of regulations were approved. He thought that it would be necessary also to try to urge that the process be concluded swiftly, so that the Regulations could be approved before the House rose in June, and to avoid a further extension of this ad hoc Committee.

Mr de Lange confirmed that the Committee Secretary of the NCOP Committee had asked for this document to be forwarded to him.

The Chairperson told Members that the NCOP ad hoc Committee Chairperson had indicated that it was ready to take the process forward, on 14 May. He reminded Members that Mr Matila, Chairperson of the NCOP Committee, had sat in on the earlier meetings. He would inform that Committee of the process.

Mr Jeffery sought and obtained confirmation from Mr de Lange that the approved changes would now be forwarded to the NCOP Committee.

Ms D Schäfer (DA) asked why the two ad hoc committees did not meet jointly.

Mr Jeffery explained that this had initially been the case, but it was impossible to find mutually acceptable dates to meet and so the NA and NCOP members agreed to meet separately to expedite the matter.

The meeting was adjourned.